New I-9 Form Shows More Changes May be in Store for Employers

On March 8, 2013, U.S. Citizen and Immigration Services (USCIS) published a new two-page version of Form I-9, together with six pages of instructions. The new form will be required for use by all employers beginning May 7, 2013. Until May 7, employers may continue to use the versions dated 08/07/09 and 02/02/09. However, employers may also begin using the new form now.

Employers do not need to complete the new Form I-9 for current employees for whom there is already a properly completed Form I-9 on file unless reverification is necessary. While the new form is available in fillable Adobe format, to avoid allegations the employer (or someone else) completed Section 1, for now employers are encouraged to print the new form and have it completed it by hand. In some jurisdictions, Immigration and Customs Enforcement (ICE) may consider an Adobe-filled Form I-9 to be an “Electronic I-9,” which would bring into play additional regulations concerning the creation and storage of Electronic I-9s.

Listed below are some of the notable features of the revised Form I-9.

Section 1

Older versions of the form included a “Maiden Name” field that has now been changed to “Other Names Used.” Additionally, two new fields now appear: email address and telephone number. While the form does not indicate this, these fields are optional.

The provision of a Social Security number in Section 1 remains optional, unless the employer participates in E-Verify.

All dates on the new Form I-9 should be in mm/dd/yyyy format. In some ICE jurisdictions, failure to use the correct date format may be considered a technical/procedural error.

For an alien authorized to work (the fourth attestation box), the new form requires the worker to either provide an A Number or a Form I-94 admission number. Form I-94 is provided to foreign workers by either Customs and Border Protection (CPB) at the time of entry or by USCIS; it is usually kept by the worker in his or her passport. If the Form I-94 was issued by CPB (and only by the CPB, not USCIS), the worker must also write the foreign passport number and the country of issuance. If Form I-94 was provided by USCIS or if the worker was not issued a Form I-94, the worker should write “N/A” in the space provided. USCIS has indicated this information is requested to provide a more accurate match for E-Verify purposes.

Section 2

Section 2 at the top of the second page begins with a field for the employer to write the employee’s full name provided in Section 1. To help prevent the two pages from becoming separated, it is a good practice to print the form front and back.

Additional space is included in List A. The additional space can be helpful in the event more room is necessary, but it can also give the incorrect impression that more than one List A document is necessary.

The employer certifications are now enumerated.

In addition, the new Form I-9 contains two spaces for a “3-D Barcode.” For now, this space is a place- holder for use in the future. USCIS has indicated it is developing an “enhanced Form I-9,” presumably to be completed online, that will capture the information presented by the employee and the employer and create a barcode in these spaces. USCIS has also separately announced that changes to the E-Verify memorandum of understanding are being considered. There is no way at present to determine if there will be any ties between an enhanced Form I-9 and E-Verify, but it certainly seems a possibility.

The release of the new Form I-9 comes at a time when there is considerable discussion in Congress regarding a federal mandate to require use of E-Verify by more employers. Nearly half the states require at least some employers to use E-Verify, and CPB is considering converting to paperless I-9s. Overall, the changes to Form I-9 and its expanded instructions should be seen as an evolving process that is intended to help lessen some of the confusion that has arisen in the completion of the form, while suggesting additional changes may be on the way for employers.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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